Sunday

26th Feb 2017

Analysis

What does the death of the EU data directive mean?

The EU's data retention directive was agreed in 2006, in the wake of terrorist attacks in Madrid and London in 2004 and 2005 respectively, as governments attempted to tighten national security rules.

Under the regime, telecoms companies were required to retain phone and email data for at least six months and up to two years (according to national law), for possible use in investigating and prosecuting terrorist and other serious crimes.

Dear EUobserver reader

Subscribe now for unrestricted access to EUobserver.

Sign up for 30 days' free trial, no obligation. Full subscription only 15 € / month or 150 € / year.

  1. Unlimited access on desktop and mobile
  2. All premium articles, analysis, commentary and investigations
  3. EUobserver archives

EUobserver is the only independent news media covering EU affairs in Brussels and all 28 member states.

♡ We value your support.

If you already have an account click here to login.

  • The ruling by the European Court of Justice leaves rules on data retention in a state of limbo (Photo: Lee Morley)

26 of the EU's 28 member countries have applied the regime into their own national legal framework. Germany and Belgium did not.

Why does the Court say it is illegal?

Digital Rights Ireland launched a court action in 2012 against the transposition of the directive, as did 11,130 Austrian rights campaigners, both of which were referred to the EU's top court, the European Court of Justice. In its ruling yesterday (8 April) the ECJ found that the directive was in breach of the right to respect for private life and the fundamental right to the protection of personal data.

"By requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data," the court in Luxembourg ruled.

But the Court did not rule that data retention itself is illegal, rather that the requirements in the EU legislation were excessive.

"The Court is of the opinion that, by adopting the Data Retention Directive, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality."

The judgement should not come as that much of a surprise, since it is in line with an opinion published in December by the ECJ's advocate general Pedro Cruz Villalon, which recommended the directive be overturned. Cruz Villalon also stated that the directive breached the Charter of Fundamental Rights.

What does it mean?

The ruling means that, in legal terms, the directive is null and void. There is no EU legislation on data retention.

"We are going back as if it never existed," a Commission source told EUobserver.

EU home affairs commissioner, Cecilia Malmstroem, said that the ruling brought "clarity and confirms the critical conclusions in terms of proportionality of the Commission's evaluation report of 2011" on the implementation of the directive.

Does that mean that the 26 national laws are invalid?

No, they will remain in place. The Court ruling does not immediately affect the rights of an EU government to demand that telecoms firms retain phone and email data.

National governments could face a flood of legal challenges against their own laws from citizens claiming breaches of privacy. But claimants would have to prove that the national laws were in breach of the Charter, which applies to all EU and national law across the bloc.

Governments face two options: to keep to their existing laws and wait for possible legal actions; or to re-write their national laws.

Meanwhile, telecoms companies could also press legal challenges relating to the length of time they are expected to retain data for under national law.

What happens next?

The European Commission was not eager to defend the legislation following the ECJ ruling.

"We all know this is not Malmstroem's favourite directive," a Commission source told EUobserver, adding that the bill had been drafted in response to "a very specific situation . . . and it was clearly done in a hurry".

Commission officials have indicated that the EU's executive arm will take "several months" to assess the impact of the judgement and will scrap its plans to modify the directive.

"There are now no EU rules on data retention . . . so our plan to revise it cannot happen any more," one official told this website. Instead, the Commission is likely to table a new legislative proposal. However, this will not be proposed to MEPs and ministers until after the European elections in May.

But since the Court did not conclude that data retention itself is illegitimate, a future EU law is likely to focus on striking a better balance between the right to privacy and data protection and national security. This will probably mean reduced retention periods and tighter restrictions on government and third party access to data.

What about the countries who refused to implement the directive?

The European Commission had begun infringement proceedings against Belgium and Germany over their refusal to implement the directive. In Germany's case, the EU executive had recommended that it be fined more than €300,000 per day that it had failed to apply the legislation.

The Court ruling does not automatically void these proceedings, but officials have indicated that the 28 commissioners will discuss the end of the two legal actions at their next meeting.

EU court scraps data surveillance law

The EU court has struck down a law on internet and phone surveillance, saying loose wording opens the door to untoward snooping.

MEPs want to scrap US data agreements

Frustrated MEPs want the EU to scrap data protection agreements with the US as they mount pressure on the member states to start negotiations on the EU data protection reforms.

Column / Health Matters

The yin and yang of traditional Chinese medicine

Can traditional medicine help the modern European patient? Malta has signed an agreement with China that would increase the provision of traditional Chinese medicine to its citizens.

Column / Brexit Briefing

Searching for a voice and a standard bearer

As Britons come to terms with the reality of Brexit many Remainers are now listless, looking for someone to present a viable alternative to Theresa May's dominance

Opinion

The Lake Chad Basin crisis

With no end in sight to the "tragedy", humanitarian agencies must call for international political and security engagement, the UN's head of migration says.

Column / Brexit Briefing

Searching for a voice and a standard bearer

As Britons come to terms with the reality of Brexit many Remainers are now listless, looking for someone to present a viable alternative to Theresa May's dominance

News in Brief

  1. Spanish court jails former IMF chief Rato
  2. Macron proposes Nordic-style economic model for France
  3. Germany posts record high budget surplus
  4. Labour ousts Ukip in Brexit homeland
  5. Dutch lower house approves EU-Ukraine treaty
  6. WTO says Russian pork ban was illegal
  7. Belgian nuclear plant made 'significant progress' on safety
  8. Report: Commission gauging EU support for Poland sanctions

Stakeholders' Highlights

  1. EURORDISJoin Rare Disease Day and Help Advocate for More Research on Rare Diseases
  2. European Healthy Lifestyle AllianceStudents Who Are Considered Fit Get Better Grades in School
  3. QS World MBA TourMeet with Leading International Business Schools in Paris on March 4th
  4. Malta EU 2017Economic Governance: Agreement Reached on Structural Reform Support Programme for Member States
  5. Socialists & DemocratsWomen Have to Work Ten Years Longer to Match Lifetime Earnings of Men
  6. Counter BalanceTrans-Adriatic Pipeline Is a Major Risk for Banks, Warns New Analysis
  7. Martens CentreEU and US Migration Policies Compared: Join the Debate on February 28th
  8. Swedish EnterprisesTechnology and Data Flows - Shaping the Society of Tomorrow
  9. UNICEFNearly 1.4 Million Children at Risk of Death as Famine Looms Across Africa and Yemen
  10. Malta EU 2017End of Roaming Fees: Council Reaches Agreement on Wholesale Caps
  11. Nordic Council of MinistersNordic Innovation House Opens in New York to Help Startups Access US Market
  12. Centre Maurits CoppietersMinorities and Migrations

Stakeholders' Highlights

  1. Salzburg Global SeminarThe Child in the City: Health, Parks and Play
  2. UNICEFNumber of Ukrainian Children Needing Aid Nearly Doubles to 1 Million Over the Past Year
  3. Centre Maurits CoppietersThe Situation of Refugee Women in Europe
  4. Salzburg Global SeminarToward a Shared Culture of Health: Charting the Patient-Clinician Relationship
  5. European Free AllianceAustria Should Preserve & Promote Bilingual and Multinational Carinthia
  6. Martens CentreShow Your Love for Democracy! Take Part in Our Contest: "If It's Broken, Let's Fix It"
  7. CISPECloud Computing Leaders Establish Data Protection Standards to Protect Customer Data
  8. Malta EU 2017Landmark Deal Reached With European Parliament on Portability of Online Content
  9. Belgrade Security ForumBSF 2017: Building a Common Future in the Age of Uncertainty
  10. CESIEU Not to Revise the Working Time Directive
  11. International Partnership for Human RightsAzerbaijan: 76 NGOs Urge the EU to Use President's Visit to Insist on Human Rights Reforms
  12. UNICEFDeadliest Winter for Migrant Children Crossing the Central Mediterranean